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British Caledonian Airways Limited v. First State Bank of Bedford, Texas, 819 F.2d 593, 1st Cir. (1987)
British Caledonian Airways Limited v. First State Bank of Bedford, Texas, 819 F.2d 593, 1st Cir. (1987)
2d 593
4 UCC Rep.Serv.2d 523
I. BACKGROUND
2
Mary Toll
Charter Services
3to deposit
4068-777-2.
5
Plaintiff's Exhibit No. 1, Record Vol. 1 at 227. The account number, 068-777-2,
corresponded to a Bedford Bank account in the name of P O M International
controlled by Savoie. Gauthier deposited the check in that account. On March
17, 1980, Gauthier also purchased a cashier's check from Preston State Bank
for $30,600, payable to Mary Tull Charter Services. Mary Tull had actually
performed charter services for British Caledonian, for which some payment
was due.
Bedford Bank sent the $116,000 check to Texas Commerce for collection,
accompanied by a routine "collection letter" form that listed the payee as "Mary
Tull Services (P O M International)." Texas Commerce cleared the check, and
on March 31, 1980, Bedford Bank credited the $116,000 to P O M's account.
On the same day, Mary Tull cashed the $30,600 cashier's check at another
bank.
court denied the motion. This appeal consolidates British Caledonian's appeal
from the summary judgment and from the denial of its Rule 60(b) motion.
II. DISCUSSION
8
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district court ordered another deposition. The importance of section 3.405 was
again emphasized by Bedford Bank's June 17 response and its accompanying
affidavits, evidence that British Caledonian would have to counter in order to
prevail on its own summary judgment motion. In sum, British Caledonian knew
for over two years that Bedford Bank would assert a section 3.405 defense, yet
now claims that the district court deprived it of the opportunity to meet that
defense. We decline to find error in the district court's actions.
B. Good Faith
11
The district court granted summary judgment for Bedford Bank on the basis of
section 3.405 of the Texas Uniform Commercial Code, which reads:
12
***
13
14
(3) an agent or employee of the maker or drawer has supplied him with the
name of the payee intending the latter to have no such interest.
15
Often called the "imposter" or "padded payroll" rule, section 3.405 represents a
policy decision to place certain losses on the employer:
16 principle followed is that the loss should fall upon the employer as a risk of his
The
business enterprise rather than upon the subsequent holder or drawee. The reasons
are that the employer is normally in a better position to prevent such forgeries by
reasonable care in the selection or supervision of his employees, or, if he is not, is at
least in a better position to cover the loss by fidelity insurance; and that the cost of
such insurance is properly an expense of his business rather than of the business of
the holder or drawee.
17
Id., Comment 4: Fidelity & Casualty Co. v. First City Bank of Dallas, 675
S.W.2d 316, 318 (Tex.App.--Dallas [5th Dist.] 1984) writ ref'd n.r.e.; Clinton
Weilbacher Builder, Inc. v. Kirby State Bank, 643 S.W.2d 473, 476 (Tex.App.-San Antonio 1982). Whenever section 3.405 makes a forged endorsement
effective, sections 4.207 and 4.401 preclude recovery against the collecting,
depositary, or drawee bank. Fidelity & Casualty Co., 675 S.W.2d at 318.
18
However, a bank cannot shelter behind section 3.405 if it does not meet the
general U.C.C. requirement of "good faith," defined as "honesty in fact in the
conduct or transaction concerned." Tex.U.C.C. Secs. 1.203, 1.201(19). The
district court held that Bedford Bank would be in good faith, despite any proof
of negligence in cashing the $116,000 check, unless Bedford Bank actually
knew that the endorsement was forged. British Caledonian argues that the
district court forced it to meet too stringent a legal standard: proof that Bedford
Bank should have known, from suspicious circumstances surrounding the
check, is enough.
19
20
Other Texas cases support our conclusion that actual knowledge is required. In
Bedford Bank & Trust Co. of Edinburg v. George, the court refused a bank the
benefit of the "holder in due course" doctrine of Tex.U.C.C. Sec. 3.305(b)
because the bank failed the good faith and notice tests. 519 S.W.2d 198
(Tex.Civ.App.--Corpus Christi 1974, writ ref'd n.r.e.). Concerning good faith,
the court observed: "The test is not diligence or negligence; and it is immaterial
that the bank may have had notice of such facts as would put a reasonably
prudent person on inquiry which would lead to discovery, unless the bank had
actual knowledge of facts and circumstances, that would amount to bad faith."
Id. at 203. As in La Sara Grain, the bank in George had in its own records
information sufficient to determine that check kiting was going on; moreover,
one of the principals in the fraud was a director of the bank at the time. Id. at
201. Further support for the subjective "actual knowledge" requirement can be
found in The Richardson Co. v. First National Bank in Dallas, 504 S.W.2d 812,
British Caledonian argues that, even under the "actual knowledge" standard,
enough evidence was presented to create a genuine issue for the jury as to
whether Bedford Bank knew that the check had been forged. Fed.R.Civ.P.
56(c). In reviewing a grant of summary judgment, this Court must view the
evidence and draw inferences in favor of the opposing party. National
Hygienics, Inc. v. Southern Farm Bureau Life Ins. Co., 707 F.2d 183, 189 (5th
Cir.1983); Wilson v. Taylor, 658 F.2d 1021, 1028 (5th Cir.1981).
22
23
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(2) Simone Gauthier's attempt to deposit the check in P O M's account violated
an apparent restrictive endorsement, "to deposit" written by Mary Tull Charter
Services.
25
26
(4) While the front of the check designates the payee as "Mary Tull Charter
Services," the endorsement reads "Mary Toll Charter Services" (Plaintiff's
Exhibit No. 1, Record Vol. 1 at 226-27 (emphasis added).
27
(5) The check was for a high amount, and therefore Bedford Bank's own
29
The discrepancy in spelling the payee's name (contention no. 4) is a minor one,
involving one letter in the name--"Tull" as opposed to "Toll." Both "Tull" and
"Toll" appear to be normal English names. The names are handwritten, and
Tedrow could have thought that one of the writers simply forgot to close the
top of the "o" or that the other inadvertently closed a "u." British Caledonian
points out that Mary Tull's representative, had the deposit been a legitimate
transaction, would have known the correct spelling of the business' name.
However, even if Tedrow noticed the "Tull/Toll" discrepancy, Tedrow need not
have drawn the conclusion that the "Tull" on the front was correct and the
"Toll" on the back erroneous. Tedrow could instead have inferred the converse:
that the back was correct and the front erroneous. The mistake would then have
been one business' mistake concerning the exact spelling of another business'
name. The U.C.C. foresees that the writer of a check may misspell his payee's
name, and allows the payee to negotiate such checks. Tex.U.C.C. Sec. 3.203.
Finally, as to contention (5), bank officer Robinson did in fact review the
check, and could not recall noticing anything suspicious about the endorsement
at the time.
30
The question is close; in some cases a large number of strong "should have
knowns" may support a jury inference of "did know." The evidence in the
instant case, however, is too weak to show more than negligence on the part of
Bedford Bank. The district court did not err in granting summary judgment on
this ground.
D. The Restrictive Endorsement
31
32
33
34
A third interpretation would read the first three lines together as constituting a
restrictive endorsement by Mary Tull directing deposit to its own account:
"Mary Toll/Charter Services/to deposit." The fourth line, "068-777-2," would
constitute P O M International's endorsement. Only under this third
interpretation would Bedford Bank have violated a restrictive endorsement, by
failing to deposit the check in a Mary Tull account.
35
The third interpretation, the only one consistent with Bedford Bank's liability, is
strained and unpersuasive. It would be unusual for a company, such as P O M
International, to endorse a check with its account number only. The fact that all
four lines of the endorsement are written in the same handwriting--a fact
frequently cited by British Caledonian--tends to support the first interpretation.
36
British Caledonian nevertheless argues that any uncertainty about the correct
interpretation of the endorsement presents a jury question precluding summary
judgment. The interpretation of a written document, such as this endorsement,
is ordinarily a question of law to be resolved by the court. Cunningham and
Co., Inc. v. Consolidated Realty Management, Inc., 803 F.2d 840, 842-43 (5th
British Caledonian argues that Bedford Bank's failure to notice the Tull/Toll
mismatch, in addition to providing evidence of bad faith, should also preclude
Bedford Bank's eligibility for the section 3.405 defense. British Caledonian
contends that the burden of comparing the front and back of a check is a light
one to impose on a bank.
38
No Texas cases address this question. British Caledonian cites several cases
from other jurisdictions refusing section 3.405 protection in transactions where
a forged endorsement did not exactly match the payee's name. Twellman v.
Lindell Trust Co., 534 S.W.2d 83 (Mo.App.1976) (front read "International
Harvester," back "Roedel Brothers Internation [sic] Harvester Trucks"); SeattleFirst National Bank v. Pacific National Bank, 22 Wash.App. 46, 587 P.2d 617
(1978) (front: "Sumner Motors, Inc."; back: "Sumner Motors"); Travco Corp. v.
Citizen's Federal Savings & Loan Association, 42 Mich.App. 291, 201 N.W.2d
675 (1972) (front: "L & B Dist., c/o F. & B. Mitchell"; back: "F. Mitchell" and
"B. Mitchell"). Of these three cases, the Twellman case involved a greater
discrepancy between the payee and endorser's names than does the instant case.
The last two cases, Seattle-First National Bank and Travco, involve a
discrepancy that changed the capacity of the payee from corporate to personal.
39
Closer to the facts of the instant case is Western Casualty & Surety Co. v.
Citizen's Bank of Las Cruces, 676 F.2d 1344 (10th Cir.1982). In that case, the
Tenth Circuit held that a bank could shelter behind New Mexico's U.C.C. Sec.
3.405 even though it processed a check payable to the "Grater Mesilla Valley
Sanitation District" and endorsed by the "Greater Mesilla Valley Sanitation
District." 676 F.2d at 1346 (emphasis added). British Caledonian points out that
the spelling mistake in Western Casualty occurred in the payee's name, while
the mistake in the instant case occurred in the endorsement. However, the
reasoning of the Tenth Circuit applies to both types of mistakes. The Tenth
Circuit concluded that the U.C.C.'s willingness to overlook a misspelling of a
payee's name in other contexts (U.C.C. Sec. 3.203), coupled with the decision
to allocate the risk of a dishonest employee's acts on his employer (U.C.C. Sec.
3.405, Comment 4) counsel in favor of granting section 3.405 protection to the
bank, as long as the check presented "a normal appearance." Id.
40
Had Bedford Bank noticed the "Tull/Toll" discrepancy, the Bank still would
not have known which spelling was correct. It would contravene the stated
purpose of section 3.405 to make the Bank's liability hinge on the fortuitous
circumstance of whether a minor mistake in spelling a payee's name appears on
the front or the back of a check. We find the reasoning of the Tenth Circuit
persuasive, and hold that, under the circumstances of the instant case, Bedford
Bank may use the section 3.405 defense despite the existence of a slight and
unnoticed name discrepancy.
F. Interest in the Instrument
41
Section 3.405(a)(3) applies only when "an agent or employee of the [check's]
maker or drawer has supplied him with the name of the payee intending the
latter to have no such interest [in the check]." British Caledonian argues that
Savoie and Gauthier did intend Mary Tull Charter Services to receive an
"interest" in the check, because Savoie and Gauthier actually gave Mary Tull a
cashier's check for $30,600.
42
43
However, British Caledonian argues that there was enough evidence to create a
43
However, British Caledonian argues that there was enough evidence to create a
jury issue as to whether Savoie intended Mary Tull to have some other type of
"interest" in the check. For example, British Caledonian asserts, "It is entirely
possible" that Savoie planned to turn over the $116,000 check to Mary Tull for
her to cash and return all but $30,600 of the proceeds to him. Appellant's Brief
at 49. British Caledonian points to no evidence in the record supporting such a
plan on Savoie's part. There is evidence in the record that tends to negate that
plan and similar plans: the fact that Savoie and Gauthier ended up negotiating
the check themselves and paying Mary Tull from a different source; Mary
Tull's deposition testimony that she was surprised by the $30,600 check, that
she never saw the $116,000 check or was aware of its existence. Record Vol. 2
at 364-70. As noted in the first section of this discussion, British Caledonian
did not move to reopen discovery in order to gather evidence to counter Mary
Tull's assertions.
44
45
46
The district court granted summary judgment to Bedford Bank on April 14,
1986. In October 1986, British Caledonian moved to vacate the judgment under
Fed.R.Civ.P. 60(b). British Caledonian based its motion on evidence
discovered in a companion case, a suit brought by British Caledonian against
Texas Commerce Bank. After briefing, the district court denied the Rule 60(b)
motion on December 4, 1986. Appeal from this denial was consolidated with
47
British Caledonian points to two pieces of evidence discovered after the district
court's summary judgment:
48
49
(2) British Caledonian obtained from Texas Commerce Bank the collection
form that Bedford Bank had filled out and forwarded to Texas Commerce when
the check was deposited in 1980. On that form, a Bedford Bank employee,
probably Jean Tedrow, the teller who processed the check, had typed "P O M
International (Mary Tull Charter Services)." British Caledonian argues that the
collection letter could have been used to contradict Tedrow's testimony that she
did not notice that the check was not going into a Mary Tull account.
50
The district court denied British Caledonian's Rule 60(b) motion on the
grounds that the evidence could have been discovered earlier with due
diligence, and that the evidence would not have changed the result of the
summary judgment. Kentucky Fried Chicken Corp. v. Diversified Packaging
Corp., 549 F.2d 368, 391 (5th Cir.1977). A district court's action on a Rule
60(b) motion is reviewed only for abuse of discretion. Murray v. Ford Motor
Co., 770 F.2d 461, 464 (5th Cir.1985).
51
In regard to the Robinson evidence, British Caledonian knew at least since the
Robinson affidavit that Robinson was the officer who reviewed the $116,000
check. As discussed in an earlier section of this opinion, British Caledonian
knew of the importance of Robinson's testimony, yet allowed nearly a year to
pass without attempting to obtain that testimony. Moreover, Robinson hedged
all of his deposition statements with "knowing what I know now" provisos.
With the provisos, Robinson's deposition does not directly contradict his
affidavit and is therefore of doubtful impact. The district court did not err in
refusing to grant the motion on the Robinson evidence.
52
III. CONCLUSION
53
The district court applied the correct legal standards under the Texas U.C.C.
British Caledonian did not present enough evidence to create a genuine issue
concerning Bedford Bank's good faith or the intention of Savoie. The district
court did not abuse its discretion in denying British Caledonian's Rule 60(b)
motion. For these reasons, the judgment of the district court is
54
AFFIRMED.